You are on page 1of 30



CemeteryandDepartmentofScales. Hebroughtthiscivillibelactionagainstthefour



movement,thestrugglefortherighttovote, andthelegaldefenseofDr.MartinLuther

appeal, appearedthenamesofthefourindividualpetitionersandof16otherpersons,

InMontgomery,Alabama,afterstudentssangMyCountry,TisofThee ontheState

speeding, loitering andsimilaroffenses.
contendedthatthewordPOLICE inthethirdparagraphreferredtohimasthe
accusedofringing thecampuswithpolice.Hefurtherclaimedthattheparagraphwould


advertisementwerelibelousperse andwerenotprivileged,sothatpetitionersmightbe
statementsweremadeofandconcerning respondent.



madeofandconcerning respondent




statementswerepublishedaspartofapaid,commercial advertisement
Thepublicationherewasnotacommercial advertisementinthesensethatit

UnderAlabamalawasappliedinthiscase,apublicationislibelousperse ifthe
wordstendtoinjureaperson***inhisreputation ortobring(him)into



wouldattachthissignificancetothewordThey, itisplainthatthesestatements




Petitioner, Social Weather Stations, Inc. (SWS), is a private nonstock, nonprofit
social research institution conducting surveys in various fields, including
economics, politics, demography, and social development, and thereafter
processing, analyzing, and publicly reporting the results thereof.

On the other hand, petitioner Kamahalan Publishing Corporation publishes the

Manila Standard, a newspaper of general circulation, which features
newsworthy items of information including election surveys.

Petitioners brought this action for prohibition to enjoin the Commission

on Elections from enforcing 5.4 of R.A. No. 9006 (Fair Election Act), which

Surveys affecting national candidates shall not be published fifteen (15) days before
an election and surveys affecting local candidates shall not be published seven (7)
days before an election.

***Election surveys refer to the measurement of opinions and perceptions

of the voters as regards a candidates popularity.

Petitioner SWS states that it wishes to conduct an election survey throughout the
period of the elections both at the national and local levels and release to the media
the results of such survey as well as publish them directly.

Petitioner Kamahalan Publishing Corporation, on the other hand, states that it

intends to publish election survey results up to the last day of the elections on May
14, 2001.

ARGUMENT#1:Petitioners argue that the restriction on the publication of election

survey results constitutes a prior restraint on the exercise of freedom of speech
without any clear and present danger to justify such restraint.
ARGUMENT #2: They point out that no similar restriction is imposed on politicians
from explaining their opinion or on newspapers or broadcast media from writing
and publishing articles concerning political issues up to the day of the election.

#3: Consequently, they contend that there is no reason for ordinary voters to be
denied access to the results of election surveys which are relatively objective.

Respondent Commission on Elections justifies the restrictions in 5.4 of R.A. No.

9006 as necessary to prevent the manipulation and corruption of the electoral
process by unscrupulous and erroneous surveys just before the election.

It contends that

(1) the prohibition on the publication of election survey results during the period
proscribed by law bears a rational connection to the objective of the law, i.e., the
prevention of the debasement of the electoral process resulting from
manipulated surveys, bandwagon effect, and absence of reply;

(2) it narrowly tailored to meet the evils sought to be prevented;

(3) the impairment of freedom of expression is minimal, the restriction being

limited both in duration, i.e., the last 15 days before the national election and
the last 7 days before a local election, and in scope as it does not prohibit
election survey results but only require timeliness

For reasons hereunder given, we hold that 5.4 of R.A. No. 9006 constitutes
an unconstitutional abridgment of freedom of speech, expression, and the

The Government thus carries a heavy burden of showing justification for the
enforcement of such restraint.

Nor may it be argued that because of Art. IXC, 4 of the Constitution, which gives
the COMELEC supervisory power to regulate the enjoyment or utilization of
franchise for the operation of media of communication, no presumption of invalidity
attaches to a measure like 5.4.

Agovernment regulation is sufficiently justified

[1] if it is within the constitutional power of the Government;

[2] if it furthers an important or substantial governmental interest; [3] if the

governmental interest is unrelated to the suppression of free expression;

[4] if the incidental restriction on alleged First Amendment freedoms [of

speech, expression and press] is no greater than is essential to the
furtherance of that interest.

First. Sec. 5.4 fails to meet criterion [3] of the OBrien test because the causal
connection of expression to the asserted governmental interest makes such interest
not unrelated to the suppression of free expression.

***Suppresses a class of expression - media

Second. Fails to meet criterion [4] of the OBrien test, namely, that the restriction be
not greater than is necessary to further the governmental interest.

As already stated, 5.4 aims at the prevention of last minute pressure on voters, the
creation of bandwagon effect, junking of weak or losing candidates, and resort to
the form of election. (There will always be herd mantality/bandwagonnning)

To summarize then, we hold that 5.4 is invalid because

(1) it imposes a prior restraint on the freedom of expression,

(2) it is a direct and total suppression of a category of expression even though such
suppression is only for a limited period,

(3) the governmental interest sought to be promoted can be achieved by means

other than the suppression of freedom of expression.
GMA Network, Inc. vs. Commission on
CONTENTION:certain regulations promulgated by the Commission on Elections
(COMELEC) relative to the conduct of the 2013 national and local elections dealing
with political advertisements.

ISSUE:The constitutionality of the limitations placed on aggregate airtime allowed

to candidates and political parties, as well as the requirements incident thereto,
such as the need to report the same, and the sanctions imposed for violations

Section 9(a) of COMELEC Resolution No. 9615 (Resolution) limiting the

broadcast and radio advertisements of candidates and political parties for
national election positions to an aggregate total of one hundred twenty
(120) minutes and one hundred eighty (180) minutes, respectively

They contend that such restrictive regulation on allowable broadcast time violates
freedom of the press, impairs the peoples right to suffrage as well as their right to
information relative to the exercise of their right to choose who to elect during the
forthcoming elections.

Sec. 6. Equal Access to Media Time and Space.All registered parties and bona
fide candidates shall have equal access to media time and space.

6.2 (a) Each bona fide candidate or registered political party for a nationally elective
office shall be entitled to not more than one hundred twenty (120) minutes of
television advertisement and one hundred eighty (180) minutes of radio
advertisement whether by purchase or donation.

(b) Each bona fide candidate or registered political party for a locally elective office
shall be entitled to not more than sixty (60) minutes of television advertisement and
ninety (90) minutes of radio advertisement whether by purchase or donation.


Owners/operators of radio and television networks in the Philippines and
Kapisanan ng mga Brodkaster ng Pilipinas (KBP) is the national organization of
broadcasting companies sent their respective letters to the COMELEC questioning
the provisions of the aforementioned Resolution.


1) Penaltyin the event they sell airtime in excess of the size, duration, or
frequency authorized in the new rules

2) Airtime - an aggregate total airtime instead of the previous per station


3) Candidates right to reply - to charges published, or aired against them. The

reply shall be given publicity, or aired against them.

Respondents arguments:

- alleges that petitioners do not have locus standi, as the constitutional rights and
freedoms they enumerate are not personal to them, rather, they belong to
candidates, political parties and the Filipino electorate in general, as the limitations
are imposed on candidates, not on media outlets.

maintains that the per candidate rule or total aggregate airtime limit is in
accordance with R.A. No. 9006 as this would truly give life to the constitutional
objective to equalize access to media during elections

- Section 4, Article IX(C) of the Constitution which vests on the COMELEC the
power to supervise and regulate, during election periods, transportation and
other public utilities, as well as mass media.


1) Argues that the questioned Resolutions are contrary to the objective and purpose
of the Fair Election Act.

COMELEC - imposing airtime limitations on an aggregate total basis.

It is likewise insisted by GMA that the assailed Resolutions impose an
unconstitutional burden on them, because their failure to strictly monitor the
duration of total airtime that each candidate has purchased even from other
stations would expose their officials to criminal liability and risk losing the stations
good reputation and goodwill, as well as its franchise

On the Time Limit

From the foregoing, it does appear that the COMELEC did not have any other
basis for coming up with a new manner of determining allowable time
limits except its own idea as to what should be the maximum number of
minutes based on its exercise of discretion as to how to level the playing field.

There is no question that the COMELEC is the office constitutionally and

statutorily authorized to enforce election laws but it cannot exercise its powers
without limitations or reasonable basis.

Here, the adverted reason for imposing the aggregatebased airtime limits
leveling the playing field does not constitute a compelling state interest which
would justify such a substantial restriction on the freedom of candidates and
political parties to communicate their ideas, philosophies, platforms and programs
of government.


Respondent itself states that [t]elevision is arguably the most costeffective medium
of dissemination. Even a slight increase in television exposure can significantly
boost a candidates popularity, name recall and electability.

If that be so, then drastically curtailing the ability of a candidate to effectively reach
out to the electorate would unjustifiably curtail his freedom to speak as a means of
connecting with the people.


The legal duty of monitoring lies with the Comelec. Broadcast stations are merely
required to submit certain documents to aid the Comelec in ensuring that
candidates are not sold airtime in excess of the allowed limits.

GMA grossly exaggerates when it claims that the

nonexistent duty would require them to hire and train an astounding additional
39,055 personnel working on eight hour shifts all over the country

The Court holds, accordingly, that, contrary to petitioners contention, the Reporting
Requirement for the COMELECs monitoring is reasonable.

Right to reply


HELD:Petitions are PARTIALLY GRANTED, Section 9(a) of Resolution No. 9615

(aggregate based airtime limits), as amended by Resolution No. 9631, is
declared UNCONSTITUTIONAL and, therefore, NULL and VOID.

The constitutionality of the remaining provisions of Resolution No. 9615,

as amended by Resolution No. 9631, is upheld and remain in full force and

The Diocese of Bacolod vs. Commission on

Summary:We are asked to decide whether the Commission on Elections (COMELEC)
has the competence to limit expressions made by the citizens who are not
candidates during elections

On February 21, 2013, petitioners posted two (2) tarpaulins within a private
compound housing the San Sebastian Cathedral of Bacolod.

Each tarpaulin was approximately six feet (6) by ten feet (10) in size. The first
tarpaulin contains the message IBASURA RH Law.
This tarpaulin contains the heading Conscience Vote and lists candidates as either
(AntiRH) Team Buhay with a check mark, or (ProRH) Team Patay with an X

During oral arguments, respondents conceded that the tarpaulin was neither
sponsored nor paid for by any candidate.

Petitioners also conceded that the tarpaulin contains names of candidates for the
2013 elections, but not of politicians who helped in the passage of the RH Law but
were not candidates for that election.

Atty. Mavil V. Majarucon, in her capacity as Election Officer of Bacolod City, issued
a Notice to Remove Campaign Materials addressed to petitioner Most Rev. Bishop
Vicente M. Navarra.

On February 25, 2013, petitioners replied requesting, among others, that (1)
petitioner Bishop be given a definite ruling by COMELEC Law Department
regarding the tarpaulin; and (2) pending this opinion and the availment of legal
remedies, the tarpaulin be allowed to remain.

COMELEC pursuant to its mandate under Article IXC, Section 4 of the

Constitution - claim that the issuances ordering its removal for being oversized are
valid and constitutional

In the present case, petitioners are not candidates seeking for public office.
Their petition is filed to assert their fundamental right to expression.


Respondents cite the Constitution, laws, and jurisprudence to support their position
that they had the power to regulate the tarpaulin. However, all of these
provisions pertain to candidates and political parties. Petitioners are not
candidates. Neither do they belong to any political party. COMELEC does
not have the authority to regulate the enjoyment of the preferred right to
freedom of expression exercised by a noncandidate in this case.

Section 4. The Commission may, during the election period, supervise or regulate
the enjoyment or utilization of all franchises or permits for the operation of
transportation and other public utilities, media

- petitioners in the case at bar are neither franchise holders nor candidates.


Sec. 2. The Commission on Elections shall exercise the following powers and


(7) Recommend to the Congress effective measures to minimize election spending,

including limitation of places where propaganda materials shall be posted, and to
prevent and penalize all forms of election frauds, offenses, malpractices, and
nuisance candidates.

Sec. 9. Posting of Campaign Materials.The COMELEC may authorize political

parties and party list groups to erect common poster areas for their candidates in not
more than ten (10) public places such as plazas, markets, barangay centers and the
like, wherein candidates can post, display or exhibit election propaganda

The tarpaulin was not paid for by any candidate or political party.

There was no allegation that petitioners coordinated with any of the persons named
in the tarpaulin regarding its posting.

On the other hand, petitioners posted the tarpaulin as part of their advocacy
against the RH Law.

In this case, the tarpaulin contains speech on a matter of public concern,

that is, a statement of either appreciation or criticism on votes made in the
passing of the RH Law. Thus, petitioners invoke their right to freedom of

First, it enhances efficiency in communication.

Second, the size of the tarpaulin may underscore the importance of the message to
the reader.

Third, larger spaces allow for more messages

While the tarpaulin may influence the success or failure of the named candidates
and political parties, this does not necessarily mean it is election propaganda. The
tarpaulin was not paid for or posted in return for consideration by any candidate,
political party, or party list group.

Test for content-neutral regulation

1) it is not within the constitutional powers of the COMELEC to regulate the

tarpaulin. As discussed earlier, this is protected speech by petitioners who are

2) Not only must the governmental interest be important or substantial, it must

also be compelling as to justify the restrictions made.

3) The COMELECs act of requiring the removal of the tarpaulin has the effect of
dissuading expressions with political consequences. These should be
encouraged, more so when exercised to make more meaningful the equally
important right to suffrage.

Embedded in the tarpaulin, however, are opinions expressed by petitioners. It is a

specie of expression protected by our fundamental law. It is an expression designed
to invite attention, cause debate, and hopefully, persuade.

DECISION: Petition granted. The temporary restraining order previously issued

is hereby made permanent. Act and letter by COMELEC are made

Summary:Consolidatedpetitionsseek to declare several
provisions of Republic Act (R.A.) 10175, the Cybercrime
Prevention Act of 2012, unconstitutional and void.

The cybercrime law aims to regulate access to and use of the

cyberspace. And because linking with the internet opens up a
user to communications from others, the ill motivated can use
the cyberspace for committing theft by hacking into or
surreptitiously accessing his bank account or credit card or
defrauding him through false representations/ sex
trafficking/porn/cyber bullying.

For this reason, the government has a legitimate right to

regulate the use of cyberspace and contain and punish

Petitioners claim that the means adopted by the cybercrime

law for regulating undesirable cyberspace activities violate
certain of their constitutional rights.



Petitioners contend that Section 4(a)(1) fails to meet the strict

scrutiny standard required of laws that interfere with the
fundamental rights of the people and should thus be struck
-the Court finds nothing in Section 4(a)(1) that calls for
the application of the strict scrutiny standard since no
fundamental freedom, like speech, is involved in punishing
what is essentially a condemnable act accessing the
computer system of another without right. It is a universally
condemned conduct

Data Interference (alteration,deletion)

Petitioners claim that Section 4(a)(3) suffers from overbreadth

in that, while it seeks to discourage data interference, it
intrudes into the area of protected speech and expression,
creating a chilling and deterrent effect on these guaranteed

It simply punishes what essentially is a form of vandalism. The

overbreadth challenge places on petitioners the heavy burden
of proving that under no set of circumstances will Section 4(a)
(3) be valid. Petitioner has failed to discharge this burden.

Cybersquatting (acquisition of domain name over the internet in bad faith

to profit, mislead)

will cause a user using his real name to suffer the same fate as
those who use aliases or take the name of another in satire,
parody, or any other literary device.

The law is reasonable in penalizing him for acquiring the

domain name in bad faith to profit, mislead, destroy
reputation, or deprive others who are not illmotivated of the
rightful opportunity of registering the same.

Computer-related Identity Theft. (identifying information

belonging to another, whether natural or juridical, without

Violates the constitutional rights to due process and to privacy

and correspondence, and transgresses the freedom of the press.

The law punishes those who acquire or use such identifying

information without right, implicitly to cause damage.
Petitioners simply fail to show how government effort to curb
computerrelated identity theft violates the right to privacy and
correspondence as well as the right to due process of law.

Clearly, what this section regulates are specific actions: the

acquisition, use, misuse or deletion of personal identifying data
of another. There is no fundamental right to acquire anothers
personal data.

Freedom of press: Moreover, acquiring and disseminating

information made public by the user himself cannot be
regarded as a form of theft.

Cybersex (willful engagement, maintenance, control, or

operation, directly or indirectly, of any lascivious exhibition
of sexual organs or sexual activity, with the aid of a
computer system)

In any event, consenting adults are protected by the wealth of

jurisprudence delineating the bounds of obscenity.

The law apply only to persons engaged in the business of

maintaining, controlling, or operating, directly or indirectly,
the lascivious exhibition of sexual organs or sexual activity
with the aid of a computer system as Congress has intended.

Child Pornography.

AntiChild Pornography Act of 200931 (ACPA) to cover identical

activities in cyberspace.

UnsolicitedCommercialCommunications.The transmission
of commercial electronic communication with the use of computer
system which seeks to advertise, sell, or offer for sale products

The above penalizes the transmission of unsolicited

commercial communications, also known as spam.

But, firstly, the government presents no basis for holding that

unsolicited electronic ads reduce the efficiency of computers.
Secondly, people, before the arrival of the age of computers,
have already been receiving such unsolicited ads by mail.

Unsolicited advertisements are legitimate forms of expression.



In 1971, Marvin Miller, an owner/operator of a California mail-order business specializing in

pornographic films and books, sent out a brochure advertising for books and a film that
graphically depicted sexual activity between men and women. The brochure used in the mailing
contained graphic images from the books and the film. Five of the brochures were mailed to a
restaurant in Newport Beach, California. The owner and his mother opened the envelope and
seeing the brochures, called the police.

Miller was arrested and charged with violating California Penal Code 311.2(a):

Every person who knowingly sends or causes to be sent, or brings or causes to be brought,
into this state for sale or distribution, or in this state possesses, prepares, publishes, produces,
or prints, with intent to distribute or to exhibit to others, or who offers to distribute, distributes, or
exhibits to others, any obscene matter is for a first offense, guilty of a misdemeanor.

California lawmakers wrote the statute based on two previous Supreme Court obscenity cases,
Memoirs v. Massachusetts and Roth v. United States.

Miller was tried by jury in the Superior Court of Orange County. At the conclusion of the
evidence phase, the judge instructed the jury to evaluate the evidence by the community
standards of California, i.e., as defined by the statute. The jury returned a guilty verdict.

Miller appealed to the Appellate Division of the Superior Court, arguing that the jury instructions
did not use the standard set in Memoirs v. Massachusetts which said that in order to be judged
obscene, materials must be utterly without redeeming social value. Miller argued that only a
national standard for obscenity could be applied.

The appellate division rejected the argument and affirmed the jury verdict. Miller then filed an
appeal with the California Court of Appeal for the Third District, which declined to review. Miller
applied to the Supreme Court for certiorari, which was granted. Oral arguments were heard in
January 1972.

Miller had based his appeal in California on Memoirs v. Massachusetts. The Court rejected that

ISSUE: W/N the sale and distribution of obscene material was protected under the First
Amendment's guarantee of Freedom of Speech.

The Court ruled that it was not. It indicated that "obscene material is not protected by the First
Amendment", especially that of hardcore pornography, thereby reaffirming part of Roth.

However, the Court acknowledged "the inherent dangers of undertaking to regulate any form of
expression," and said that "State statutes designed to regulate obscene materials must be
carefully limited.

The Court, in an attempt to set such limits devised a set of three criteria which must be met for a
work to be legitimately subject to state regulation:

whether the average person, applying contemporary "community standards", would find that
the work, taken as a whole, appeals to the prurient interest
whether the work depicts or describes, in an offensive way, sexual conduct or excretory
functions, as specifically defined by applicable state law

whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

This obscenity test overturns the definition of obscenity set out in the Memoirs decision, which
held that "all ideas having even the slightest redeeming social importance . . . have the full
protection of the guaranties [of the First Amendment]" and that obscenity was that which was
"utterly without redeeming social importance."

The Miller decision vacated the jury verdict and remanded the case back to the California
Superior Court.

PITA v. CA (1989)
J. Sarmiento


In 1983, elements of the Special Anti-Narcotics Group, and the Manila Police, seized and
confiscated from dealers along Manila sidewalks, magazines believed to be obscene in lieu of
Mayor Bagatsings ANTI-SMUT CAMPAIGN. These were later burned. One of the
publications was Pinoy Playboy published by Leo Pita.

He filed an injunction case against the mayor of manila to enjoin him from confiscating more
copies of his magazine and claimed that this was a violation of freedom of speech. The court
ordered him to show cause. He then filed an Urgent Motion for issuance of a temporary
restraining order against indiscriminate seizure.

Defendant Mayor Bagatsing admitted the confiscation and burning of obscence reading
materials but admitted that these were surrendered by the stall owners and the establishments
were not raided.

The other defendant, WPD Superintendent, Narcisco Cabrera, filed no answer.

On January 11, 1984, the trial court issued an Order setting the case for hearing on January 16,
1984 "for the parties to adduce evidence on the question of whether the publication 'Pinoy
Playboy Magazine alleged (sic) seized, confiscated and/or burned by the defendants, are
obscence per se or not.
On February 3, 1984, the trial court promulgated the Order appealed from denying the motion
for a writ of preliminary injunction, and dismissing the case for lack of merit
The CA also dismissed the appeal due to the argument that freedom of the press is not without

In the SC, the petitioner claimed that:

1. The CA erred in holding that the police officers could without any court warrant or order seize
and confiscate petitioner's magazines on the basis simply of their determination that they are
2. The Court of Appeals erred in affirming the decision of the trial court and, in effect, holding
that the trial court could dismiss the case on its merits without any hearing thereon when what
was submitted to it for resolution was merely the application of petitioner for the writ of
preliminary injunction.

ISSUE: Was the seizure constitutional?

HELD: No. Petition granted



1. W/N the tendency of the matter charged as obscene, is to deprave or corrupt those whose
minds are open to such immoral influences and into whose hands a publication or other article
charged as being obscene may fall

2. W/N a picture is obscene or indecent must depend upon the circumstances of the case, and
that ultimately, the question is to be decided by the "judgment of the aggregate sense of the
community reached by it. (Kottinger)

When does a publication have a corrupting tendency, or when can it be said to be offensive to
human sensibilities?

The issue is a complicated one, in which the fine lines have neither been drawn nor divided.
Katigbak- "Whether to the average person, applying contemporary standards, the dominant
theme of the material taken as a whole appeals to prurient interest.

Kalaw-Katigbak represented a marked departure from Kottinger in the sense that it measured
obscenity in terms of the "dominant theme" of the work, rather than isolated passages, which
were central to Kottinger (although both cases are agreed that "contemporary community
standards" are the final arbiters of what is "obscene").

Kalaw-Katigbak undertook moreover to make the determination of obscenity essentially a

judicial question and as a consequence, to temper the wide discretion Kottinger had given unto
law enforcers.

The latest say on American jurisprudence was Miller v. California, which expressly abandoned
Massachusettes, and established "basic guidelines," to wit: "(a) whether 'the average person,
applying contemporary standards' would find the work, taken as a whole, appeals to the prurient
interest . . .; (b) whether the work depicts or describes, in a patently offensive way, sexual
conduct specifically defined by the applicable state law; and (c) whether the work, taken as a
whole, lacks serious literary, artistic, political, or scientific value.

The lack of uniformity in American jurisprudence as to what constitutes "obscenity" has been
attributed to the reluctance of the courts to recognize the constitutional dimension of the

Apparently, the courts have assumed that "obscenity" is not included in the guaranty of free
speech, an assumption that, as we averred, has allowed a climate of opinions among
magistrates predicated upon arbitrary, if vague theories of what is acceptable to society.

In the case at bar, there is no challenge on the right of the State, in the legitimate exercise of
police power, to suppress smut provided it is smut. For obvious reasons, smut is not smut simply
because one insists it is smut. So is it equally evident that individual tastes develop, adapt to
wide-ranging influences, and keep in step with the rapid advance of civilization. What shocked
our forebears, say, five decades ago, is not necessarily repulsive to the present generation.

But neither should we say that "obscenity" is a bare (no pun intended) matter of opinion. As we
said earlier, it is the divergent perceptions of men and women that have probably compounded
the problem rather than resolved it.

Undoubtedly, "immoral" lore or literature comes within the ambit of free expression, although not
its protection. In free expression cases, this Court has consistently been on the side of the
exercise of the right, barring a "clear and present danger" that would warrant State interference
and action. But the burden to show this lies with the authorities.

"There must be objective and convincing, not subjective or conjectural, proof of the
existence of such clear and present danger.
As we so strongly stressed in Bagatsing, a case involving the delivery of a political speech, the
presumption is that the speech may validly be said.

The burden is on the State to demonstrate the existence of a danger, a danger that must
not only be: (1) clear but also, (2) present, to justify State action to stop the speech.

The Court is not convinced that the private respondents have shown the required proof to justify
a ban and to warrant confiscation of the literature for which mandatory injunction had been
sought below.

First of all, they were not possessed of a lawful court order:

(1) finding the said materials to be pornography,
(2) and authorizing them to carry out a search and seizure, by way of a search warrant.

Has petitioner been found guilty for publishing obscene works under Presidential Decrees Nos.
960 and 969? This not answered, one can conclude that the fact that the former respondent
Mayor's act was sanctioned by "police power" is no license to seize property in disregard of due
process. The PDs dont give the authorities the permission to execute high-handed acts.
It is basic that searches and seizures may be done only through a judicial warrant, otherwise,
they become unreasonable and subject to challenge.

There is of course provision for warrantless searches under the Rules of Court but as the
provision itself suggests, the search must have been an incident to a lawful arrest and it
must be on account for a crime committed.

The fact that the instant case involves an obscenity rap makes it no different from
Burgos, a political case, because speech is speech, whether political or "obscene". The
authorities must apply for the issuance of the a search warrant from the judge , if in their
opinion, an obscenity rap is in order. They must convince the court that the materials
sought to be seized are "obscene" and pose a clear and present danger of an evil
substantive enough to warrant State interference and action.

The Court rejected the argument that "[t]here is no constitutional nor legal provision which would
free the accused of all criminal responsibility because there had been no warrant, and there is
no "accused" here to speak of, who ought to be punished".

Second, to say that the respondent Mayor could have validly ordered the raid (as a result of an
anti-smut campaign) without a lawful search warrant because, in his opinion, "violation of penal
laws" has been committed, is to make the respondent Mayor judge, jury, and executioner rolled
into one.
New York v. Ferber (1982)
Summary: a precedential decision given by the United States Supreme Court, which ruled
unanimously that the First Amendment right to free speech did not forbid states from banning
the sale of material depicting children engaged in sexual activity, even if the material was not

New York had an obscenity law that made it illegal for an individual to "promote any
performance which includes sexual conduct by a child less than sixteen years of age." Paul
Ferber, an owner of an adult bookstore in Manhattan, was charged under the law after he sold
an undercover police officer two films depicting young boys masturbating.

He was charged with promoting both obscene sexual performances and indecent sexual
performances. At trial, he was acquitted of the obscene sexual performance count but he was
convicted of the indecent sexual performance count, and the conviction was affirmed by the
intermediate appellate court.

The New York Court of Appeals overturned the conviction, finding the obscenity law
unconstitutional under the First Amendment because the law was both underinclusive as to
other films of dangerous activity, and overbroad as to its application to materials produced out-
of-state and non-obscene materials.

W/N the right to free speech forbids States from banning the sale of material depicting children
engaged in sexual activity, even if the material was not obscene

The Court upheld the constitutionality of New York's obscenity law, ruling that it did not violate
the First Amendment, and reversed and remanded the case.

For a long time before the decision, the Court had ruled that the First Amendment allowed the
regulation of obscenity. Under the Court's previous decision in Miller v. California, 413 U.S. 15
(1973), material is "obscene" if, taken as a whole and applying contemporary community
standards, it lacks serious scientific, literary, artistic, or political value, is "patently offensive" and
aimed at "prurient interests".
The court in Ferber found that child pornography, however, may be banned without first being
deemed obscene under Miller for five reasons:

1. The government has a very compelling interest in preventing the sexual exploitation of

2. Distribution of visual depictions of children engaged in sexual activity is intrinsically related to

the sexual abuse of children.

3. The images serve as a permanent reminder of the abuse, and it is necessary for
government to regulate the channels of distributing such images if it is to be able to eliminate
the production of child pornography.

4. Advertising and selling child pornography provides an economic motive for producing child

5. Visual depictions of children engaged in sexual activity have negligible artistic value.

Thus, holding that child pornography is outside the protection of the First Amendment is
consistent with the Court's prior decisions limiting the banning of materials deemed "obscene"
as the Court had previously defined it. For this reason, child pornography need not be legally
obscene before being outlawed.


Summary: a United States Supreme Court case in which all nine Justices of the Court voted to
strike down anti-indecency provisions of the Communications Decency Act (CDA), because they
violated the First Amendment's guarantee of freedom of speech. Two Justices concurred in part
and dissented in part to the decision. This was the first major Supreme Court ruling on the
regulation of materials distributed via the Internet.

The Communications Decency Act was an attempt to protect minors from explicit material on the
Internet by criminalizing the knowing transmission of "obscene or indecent" messages to any
recipient under 18; and also the knowing sending to a person under 18 of anything "that, in
context, depicts or describes, in terms patently offensive as measured by contemporary
community standards, sexual or excretory activities or organs."
The ACLU argued that certain parts of the act were facially unconstitutional and sought a
preliminary injunction preventing the government from enforcing those provisions. Section 561
of the act required that any facial challenges be heard by a panel of three district judges; that
panel granted the injunction. Because the act also permitted appeals to be heard directly by the
Supreme Court, the Court affirmed the panel's judgment without the usual intermediate
appellate decision.

The government's main defense of the CDA was that similar decency laws had been upheld in
three prior Supreme Court decisions: Ginsberg v. New York (1968); F.C.C. v. Pacifica
Foundation (1978); and Renton v. Playtime Theatres, Inc. (1986); and that the CDA should be
similarly upheld.

In Ginsberg v. New York, the Supreme Court ruled that material that is not obscene may
nonetheless be harmful for children, and its marketing may be regulated.

In F.C.C. v. Pacifica Foundation, the Supreme Court had upheld the possibility of the FCC
delivering administrative sanctions to a radio station for broadcasting George Carlin's
monologue on "Filthy Words".

In Reno v. ACLU, though, the Supreme Court held that this was not case law justifying the CDA,
as the FCC's sanctions were not criminal punishments; and TV and radio broadcasts, "as a
matter of history, had 'received the most limited First Amendment protection'in large part
because warnings could not adequately protect the listener from unexpected program content",
as opposed to Internet users, who must take "a series of affirmative steps" to access explicit

Finally, in Renton v. Playtime Theatres, Inc., the Supreme Court had upheld a zoning
ordinance that kept adult movie theaters out of residential neighborhoods. The government
argued that the CDA was an attempt to institute "a sort of 'cyberzoning' on the Internet".

In Reno v. ACLU, however, the Court ruled that the "time, place, and manner regulation" that
Renton had enacted was not similar to the CDA, which was "a content-based blanket restriction
on speech.


In a nuanced decision, Justice John Paul Stevens wrote of the differences between Internet
communication and previous types of communication that the Court had ruled on. In conclusion,
he wrote:
"We are persuaded that the CDA lacks the precision that the First Amendment requires when a
statute regulates the content of speech. In order to deny minors access to potentially harmful
speech, the CDA effectively suppresses a large amount of speech that adults have a
constitutional right to receive and to address to one another. That burden on adult speech is
unacceptable if less restrictive alternatives would be at least as effective in achieving the
legitimate purpose that the statute was enacted to serve. ()

It is true that we have repeatedly recognized the governmental interest in protecting children
from harmful materials. But that interest does not justify an unnecessarily broad suppression of
speech addressed to adults. As we have explained, the Government may not "reduc[e] the adult what is fit for children.

The rest of the CDA, including the "safe harbor" provision protecting Internet service providers
from being liable for the words of others, was not affected by this decision and remains law.

Through the use of chat rooms, any person with a phone line can become a town crier with a
voice that resonates farther than it could from any soapbox. Through the use of Web pages,
mail exploders, and newsgroups, the same individual can become a pamphleteer.

Opinion of the court, 58 5-6



On April 26, 2004, as part of an undercover operation aimed at combating child exploitation on
the Internet, Special Agent (SA) Timothy Devine, United States Secret Service, Miami Field
Office, entered an Internet chat room using the screen name Lisa n Miami (LNM).

SA Devine observed a public message posted by a user employing a sexually graphic screen
name, which was later traced to the defendant Williams. Williamss public message stated that
Dad of toddler has good pics of her an [sic] me for swap of your toddler pics, or live cam. SA
Devine as LNM engaged Williams in a private Internet chat during which they swapped non-
pornographic photographs.

Williams provided a photograph of a two to three-year-old female lying on a couch in her bathing
suit, and five photographs of a one to two-year-old female in various non-sexual poses, one of
which depicted the child with her chest exposed and her pants down just below her waistline.
LNM sent a non-sexual photo of a college-aged female digitally regressed to appear 1012
years old, who LNM claimed was her daughter.

After the initial photo exchange, Williams claimed that he had nude photographs of his four-year-
old daughter, stating Ive got hc [hard core] pictures of me and dau, and other guys eating her
outdo you?

Williams asked for additional pictures of LNMs daughter. When these pictures were not
received, Williams accused LNM of being a cop. LNM responded by accusing Williams of being
a cop. After repeating these accusations in the public part of the chat room, Williams posted a

The message was followed by a computer hyperlink, which SA Devine accessed. The computer
hyperlink contained, among other things, seven images of actual minors engaging in sexually
explicit conduct. The nude children in the photos were approximately five to fifteen years old,
displaying their genitals and/or engaged in sexual activity.

Secret Service agents executed a search warrant of Williamss home. Two computer hard drives
seized during the search held at least twenty-two images of actual minors engaged in sexually
explicit conduct or lascivious display of genitalia. Most of the images depicted prepubescent
children and also depicted sado-masochistic conduct or other depictions of pain.

Williams was charged with one count of promoting, or pandering, material in a manner that
reflects the belief, or that is intended to cause another to believe, that the material contains
illegal child pornography in violation of 18 U.S.C. 2252A(a)(3)(B), which carries a sixty-month
mandatory minimum sentence. Williams was also charged with one count of possession of child
pornography under 18.

US Congress enacted the PROTECT Act which proscribes the pandering of "any material or
purported material in a manner that reflects the belief, or that is intended to cause another to
believe" that the material is illegal child pornography.

The Act represents Congress's attempt to outlaw sexually explicit images of children - including
both images of real children and computer-generated images of realistic virtual children.

The Supreme Court struck down Congress's previous effort as overbroad in Ashcroft v. Free
Speech Council, because the law as written could have outlawed artwork that was neither
obscene nor child pornography.

Williams filed a motion to dismiss the pandering charge on the grounds that 18 U.S.C.
2252A(a)(3)(B) is unconstitutionally overbroad and vague. While the motion was pending before
the trial court, the parties reached a plea agreement by which Williams would plead guilty to
both counts but reserve his right to challenge the constitutionality of the pandering provision on
appeal. The court sentenced Williams to sixty months.

The U.S. Court of Appeals for the Eleventh Circuit reversed the lower court and struck down the
PROTECT Act as unconstitutionally overbroad. The Eleventh Circuit was unmoved by the
government's argument that prosecuting the promotion of virtual child pornography as real is
necessary to combat the child porn market. The Circuit Court held that the Act's prohibition was
broad enough to include any "braggart, exaggerator, or outright liar" who claims in a non-
commercial context to have child pornography but actually does not. Thus, the Act's pandering
provision prohibited protected speech as well as actual child pornography.

W/N the PROTECT Act abridge First Amendment freedom of speech by outlawing the
pandering of material that is believed to be, or claimed to be, illegal child pornography?


No. Justice Antonin Scalia, writing for a seven-Justice majority, held that the statute was not
overly broad as written.

Justice Scalia noted specifically that offers to engage in illegal transactions are categorically
excluded from First Amendment protection, and he characterized the speech of an individual
claiming to be in possession of child pornography in this category of unprotected speech.

He also stated that the law did not violate Due Process because its requirements were clear and
could be understood by courts, juries and potential violators. Justice David Souter filed the only
dissenting opinion, in which Justice Ruth Bader Ginsburg joined.